Volume 62, Issue 1 - December 2009

The Democracy Canon

In the heat of the 2008 election season—following the new tradition of the 2000 and 2004 elections—candidates, political parties, and others filed new lawsuits practically every day over election law issues. The issues ranged from candidate ballot access to the allocation of voting machines by precinct to the accuracy of state voter registration databases. In mid-September 2008, two Ohio controversies garnered national attention. In one case, Republicans filed suit to block first-time Ohio voters from registering to vote and casting an early in-person absentee ballot at the same time during an apparent five-day statutory overlap between the dates for voter registration and for early voting. In another case, Republicans sued the Democratic Ohio Secretary of State, Jennifer Brunner, for her refusal to accept absentee ballot requests submitted by voters who filled out a form sent to them by the McCain campaign unless the voter had checked a box confirming the voter was qualified to vote. The box, mistakenly added by the McCain campaign, was not required under Ohio law.

My initial reaction to the lawsuits—before I had chance to examine the relevant Ohio statutes—was that Republicans should lose the first case and win the second. That is, I entered into the statutory analysis with a thumb on thescale in favor of voter enfranchisement, which could be overcome only by clear statutory language to the contrary or strong competing policy reasons. Eventually, the Ohio Supreme Court, relying on such a canon of construction favoring voters, indeed sided with the voters in both cases…